Baker v DPP

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0107

EARL BAKER (a pseudonym)[1]	Applicant
v
DIRECTOR OF PUBLIC PROSECUTIONS	Respondent
and
ATTORNEY-GENERAL FOR THE STATE OF VICTORIA	Intervener
and
VICTORIAN EQUAL OPPORTUNITY AND HUMAN RIGHTS COMMISSION	Intervener

[1]To ensure that there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the applicant’s name.

---

JUDGES:	MAXWELL P, TATE and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 August 2016
DATE OF JUDGMENT:	22 March 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 58
JUDGMENT APPEALED FROM:	DPP v [Baker] (Unreported ruling, County Court of Victoria, 27 May 2016)

---

CRIMINAL LAW – Interlocutory appeal – Application for a permanent stay of proceedings – Allegations of sexual penetration of a child under 16, knowingly possessing child pornography and use of on-line information to transmit child pornography – Applicant aged 17 at the time of the alleged offending but not charged until he turned 19 – Whether loss of opportunity to be dealt with in the Children’s Court constituted a breach of human rights under the Charter of Human Rights and Responsibilities – Right of a person charged with a criminal offence to be tried without unreasonable delay – Right to a fair trial – Right of a child to protection of his or her best interests - Whether a permanent stay at common law should be granted – R v Nona (2012) 6 ACTLR 203, Nona v The Queen (2013) 8 ACTLR 168, Sabet v Medical Practitioners Board (2008) 20 VR 414, HM Advocate v R [2004] 1 AC 462, Attorney-General’s Reference [No 2 of 2001] [2004] 2 AC 72, discussed - Jago v District Court (NSW) (1989) 168 CLR 23, Clark (a pseudonym) v The Queen [2016] VSCA 96, followed - Charter of Human Rights and Responsibilities ss 17(2), 23(2), 24(1), 25(2)(c), 25(3), 38, 39 – Leave to appeal granted – Appeal dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J E McLoughlin with Mr R J De Vietri	Victoria Legal Aid
For the Respondent	Mr C B Boyce QC with Mr T S Hoare	John Cain, Solicitor for Public Prosecutions
For The Attorney-General (Vic) (intervening by written submissions)	Ms M J Richards SC with Ms J M Davies	Victorian Government Solicitor
For the Victorian Equal Opportunity and Human Rights Commission (intervening by written submissions)	Mr S Holt QC	Victorian Equal Opportunity and Human Rights Commission

MAXWELL P:

I have had the considerable advantage of reading in draft the reasons for judgment of Tate JA. I would make the orders which her Honour proposes, for the reasons which she gives.

TATE JA:

TABLE OF CONTENTS

Introduction and summary.................................................................................................. 1

The indictable offences ………………………………………………………………........ 3

The judge’s reasons ............................................................................................................... 5

The rights relied upon on appeal ………...………………………………………….…… 6

Interlocutory appeals and Charter issues ………………………………………………. 8

Is Baker impermissibly seeking collateral review of prosecutorial discretion? ......... 10

The Charter: has there been a breach of Baker’s human rights? ………........................ 13

(1)     What is the contravening conduct and who is the ‘public authority’? ……… 13

(2)     The right to be tried without unreasonable delay ............................................. 17

(3)     The right to a fair trial ...................................................................................... 28

(4)     The right of a child to the protection of his or her best interests ....................... 29

(5)     Have Baker’s rights been interfered with —to what extent?............................. 33

(6) Conclusion on the Charter ............................................................................... 39

Did the judge err in refusing a permanent stay at common law? ................................. 39

Conclusion............................................................................................................................. 42
- - -
Introduction and summary

Should an offender who was a child at the time of the offending, but an adult

by the time he was charged, be granted a permanent stay of the prosecution because he has lost the opportunity to be dealt with in the Children’s Court? This proceeding raises that question within the context of the common law as well as by reference to alleged breaches of the Charter of Human Rights and Responsibilities (‘the Charter’).[2]

[2]See s 1(1) of the Charter.

Earl Baker (‘Baker’) applies for leave to appeal under s 295 of the Criminal Procedure Act 2009 (‘the CPA’) against an interlocutory decision of a judge of the County Court of Victoria refusing to grant a permanent stay of charges contained in an indictment.[3] Baker is facing charges of sexual penetration of a child under 16 contrary to s 45(1) of the Crimes Act 1958 (charge 1), knowingly possessing child pornography contrary to s 70(1) of the Crimes Act (charge 2) and use of on-line information to transmit child pornography contrary to s 57A(1) of the Classification (Publications, Films and Computer Games)(Enforcement) Act 1995 (charge 3).
[3]DPP v [Baker] (Unreported ruling, County Court of Victoria, 27 May 2016) (‘Reasons’). The application was heard on 24 May 2016 before Baker was arraigned. On 27 May 2016 the judge certified that the interlocutory decision is of sufficient importance to the trial to justify it being determined on an interlocutory appeal under s 295(3)(b) of the CPA.

Baker was 17 years of age at the time of the alleged offending between 1 May and 31 May 2014. However, by the time the matters were investigated and charges were laid on 27 July 2015, he had turned 19. He now seeks for the proceedings brought against him to be permanently stayed. He says that the delay between the time of the offending and the time at which he was charged meant that he lost his right to have the charges dealt with in the Children’s Court, and instead he will be dealt with in a general court. If convicted, he submits that he will be subject to a markedly different sentencing regime than the one to which he would have been subject if he had been dealt with in the Children’s Court. He submits that this would be unfair because it breaches his right to be tried without unreasonable delay under s 25(2)(c) of the Charter. Moreover, he asserts that this would involve a contravention of his right as a child to the protection of his best interests under s 17(2) of the Charter and a breach of his right to a fair trial under s 24(1). He submits that, in any event, common law principles support the grant of a permanent stay because the prosecution amounts to an abuse of process.

The application for leave to appeal is opposed by the respondent, the Director of Public Prosecutions (‘the DPP’). The Attorney-General for Victoria and the Victorian Equal Opportunity & Human Rights Commission (‘the Commission’) have both intervened in the proceeding.

I would grant leave to appeal under s 297 of the CPA because it is in the interests of justice to do so having regard to the potential for the appeal to resolve issues of law that are necessary for the proper conduct of the proceeding.[4] For the reasons that follow, I would dismiss the appeal.
[4]In what follows I refer to the proceeding as simply ‘the appeal’.

The indictable offences

According to the Summary of Prosecution Opening, during the early half of 2014 Baker asked the complainant, Emma,[5] for some nude photos of herself. Emma was then aged 14. She took two or three photos of herself using her mobile phone. The photos depicted her breasts, which were naked, and her groin area covered by underwear. Emma forwarded the photos to Baker’s mobile phone (charge 2).
[5]I will use this pseudonym, rather than the complainant’s real name, to protect her identity.

After receiving the photographs Baker sent a photo via Facebook to a friend accompanied by the words ‘Check this out’ (charge 3).

On a later occasion, Baker slept over at Emma’s house, sharing a bed with Emma and another girl who awoke to hear Baker and Emma having sexual intercourse (charge 1).

Emma told a teacher that she had sent a nude photograph of herself to Baker and he was threatening to send it to other people.

On 5 June 2014 the matter was reported to police.

On 13 June 2014 Emma took part in a video recorded interview with police.

More than nine months later, on 13 March 2015, Baker was interviewed by police and gave a ‘no comment’ interview. The period of the alleged offending was 1 May to 31 May 2014. On 1 June 2014, the day after the alleged offending concluded, Baker turned 18. Three months after he was interviewed, on 1 June 2015, Baker turned 19.

More than a year after the offending, on 27 July 2015, the police filed charges in the Magistrates’ Court in Bendigo. A summons was issued for Baker to appear in the Bendigo Magistrates Court for the first mention of the charge.

As the charges alleged indictable offences a committal was required. On 2 September 2015 a filing hearing took place. This formally signifies the commencement of the committal proceeding and an accused is required to attend.

Baker was committed to stand trial in the County Court pursuant to s 144 of the CPA. A committal was conducted on 22 December 2015 before a Magistrate. Upon being committed, the DPP filed an indictment on 18 January 2016. The matter was listed for hearing on 24 May 2016. Baker was granted bail and has remained on bail at all relevant times, including during the hearing and determination of his application for leave to appeal.[6]
[6]On 22 December 2015 Baker was granted bail and released on his own undertaking by the Registrar of the Magistrates’ Court in Bendigo. On 24 May 2016 the judge granted a variation of the bail altering the address at which Baker is to reside.

In the Defence Response to the Summary of Prosecution Opening Baker admitted the factual allegations contained therein.

Before he was arraigned, Baker made an application in the County Court on 24 May 2016, for a permanent stay of the charges on the indictment. In the Defence Response he indicated that if the application was not successful, he would enter pleas of ‘guilty’ to charges 1 and 3 on the indictment.

The judge’s reasons

The judge noted that the definition of ‘child’ in s 3 of the Children, Youth and Families Act 2005 (‘the CYFA’) includes:

a person who at the time of the alleged commission of the offence was under the age of 18 years but of or above the age of 10 years but does not include any person who is of or above the age of 19 years when a proceeding for the offence is commenced in the Court.

The judge observed that:

The effect of that provision in the circumstances here, is that there was a window of about 54 weeks between the commencement of the alleged offending and the accused’s 19^th birthday on the 1^st June 2015 in which the accused could have been charged and dealt with in the Children’s Court. The gravamen of the application is that because the accused was not charged within that window any trial held in this court will as a consequence be unfair.[7]

[7]Reasons [17].

Before the judge, Baker principally relied on the submission that being charged after he turned 19 was a breach of his right under s 23(2) of the Charter. That section provides:

23 Children in the criminal process
…
(2) An accused child must be brought to trial as quickly as possible.

Although the word ‘child’ is defined by s 3 of the Charter to mean ‘a person under 18 years of age’, the term ‘accused child’ is not defined. The judge held that the provisions of s 23(2) did not apply to Baker because he was never an ‘accused child’; by the time he was charged on 27 July 2015, he was an adult.[8] Nor did the judge accept that the principles applicable to ‘accused juveniles’ and ‘children accused’ under the International Covenant on Civil and Political Rights (‘the ICCPR’),[9] or the United Nations Convention on the Rights of the Child,[10] or ‘The Beijing Rules’ (United Nations Standard Minimum Rules for the Administration of Juvenile Justice)[11] had any application for the same reason:

Again, in my view, those various documents, to which Australia is doubtless a signatory, have no application here in the circumstances of this case. That is because the accused was neither charged nor accused as a child. He was charged when he was an adult, not a child.[12]

[8]Ibid [20].

[9]Opened for signature 16 December 1966, 999 UNTS 171 (entry into force 23 March 1976, in accordance with Article 49).

[10]Opened for signature 20 November 1989, 1577 UNTS 3 (entry into force 2 September 1990, in accordance with Article 49).

[11]GA Res 40/33, UN GA, 40^th sess, 96^th plen mtg, UN Doc A/RES/40/33 (29 November 1985).

[12]Reasons [21].

The judge concluded that Baker had not discharged the heavy onus on him to satisfy the Court that exceptional circumstances had arisen which would justify the exercise of the discretion to grant a permanent stay. In his view, this was not an exceptional or extreme case; rather, the delay could be taken into account during the sentencing process:

I accept it is regrettable that the accused cannot be, and will not be, dealt with in the Children’s Court. The fact he could have been and that he has lost that opportunity because of the delay are factors to be taken into account in arriving at an appropriate sentence should he be found guilty after a trial. That is not an extreme or unusual circumstance caused by delay. This court does have occasion to have to deal with such matters in sentencing. But these factors will not cause the trial process itself to be unfair.[13]

[13]Ibid [36].

The judge therefore dismissed the application.

The rights relied upon on appeal

During the course of the hearing of the appeal, counsel for Baker in effect conceded that his reliance on s 23(2) was misplaced. Counsel accepted that ‘the difficulty is that even looking at the best interpretation of the facts for us, he wasn’t a child when the accusation was made’.[14]
[14]Maxwell P stated: ‘That’s probably the end of that point, isn’t it?’, and counsel responded: ‘As that stands’. The Commission also accepted that s 23(2) is not engaged here.

Baker submits, however, that other rights are relevant. In particular, he argues that there has been a breach of s 25(2)(c) of the Charter.

Section 25(2)(c) provides:

25 Rights in criminal proceedings
…
(2)A person charged with a criminal offence is entitled without discrimination to the following minimum guarantees —
…
(c) to be tried without unreasonable delay; …

Baker’s written and oral submissions, in support of the application for leave to appeal, also refer to other rights as having relevance beyond those considered by the judge and beyond s 25(2)(c). These include the right of a child under s 17(2) to such protection as is in his or her best interests, and the right of a child charged with a criminal offence to appropriate procedures under s 25(3) (relied upon as an aspect of s 17(2)), and the right to a fair trial under s 24(1) of the Charter. The submissions with respect to s 17(2) were developed and emphasised during the oral hearing and this led to the intervention by the Attorney-General and the Commission, after the completion of the hearing, by way of written submissions.[15]
[15]The Attorney-General and the Commission were served with notification of this proceeding under s 35 of the Charter and intervened pursuant to s 34 and s 40 of the Charter. After that intervention, submissions were filed by the Attorney-General and the Commission and supplementary submissions were filed by the parties.

Section 17(2) provides:

17 Protection of families and children
…
(2)Every child has the right, without discrimination, to such protection as is in his or her best interests and is needed by him or her by reason of being a child.

Section 25(3) provides:

25 Rights in criminal proceedings
...
(3)A child charged with a criminal offence has the right to a procedure that takes account of his or her age and the desirability of promoting the child’s rehabilitation.

Section 24(1) provides:

24 Fair hearing
(1) A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

Interlocutory appeals and Charter issues

Although Baker acknowledges that it is generally inappropriate to rely on Charter arguments in an interlocutory appeal, he submits that it is appropriate in the circumstances of his case. In Wells v The Queen [No 2][16] the Court remarked:

This Court should generally not be expected to entertain arguments involving the application of the Charter on interlocutory appeals. As counsel for both parties to this application conceded, such arguments will usually involve complex questions. The construction of the provisions of the Charter often require substantial research of international jurisprudence and resulting lengthy consideration. The raising of a Charter issue requires the notification, and the possible involvement, of additional entities (including the Attorney-General); and most often significant delay in the trial below. For these reasons, it can be expected that arguments involving the Charter will rarely be appropriate for determination on an interlocutory appeal. The fragmentation of individual trials should be avoided unless there is a compelling reason to the contrary.[17]

[16][2010] VSCA 294 (‘Wells’).

[17]Ibid [39]. In R v Chaouk (2013) 40 VR 356, 376 [35] (Nettle AP, Buchanan and Osborn JJA), this Court emphasised the observations made in Wells.

Baker submits that the considerations identified in Wells do not apply here. There is no risk of fragmentation of a jury trial or deterioration of evidence because, as mentioned,[18] Baker has admitted the factual allegations contained in the Summary of Prosecution Opening and indicated that he intends to plead guilty[19] if the proceeding is not permanently stayed. Given the pre-trial nature of this application, it is appropriate that a determination on whether to grant a permanent stay on Charter grounds should be dealt with at an interlocutory stage. Moreover, the underlying facts of the case are relatively simple. Finally, the Charter argument runs in tandem with a pre-existing common law basis for a permanent stay which he would litigate in any event.
[18]See [17] above.
[19]At least with respect to charges 1 and 3 on the indictment.

At the hearing of the appeal, the DPP withdrew his opposition to the reliance on the Charter in this proceeding, despite it being an interlocutory appeal, as he accepted that there was here no risk of fragmentation.

The Attorney-General submits that the statements made in Wells should be understood as the application of general principles about whether and when any question of law is appropriate for determination in an interlocutory appeal, rather than establishing any different rule for questions of law under the Charter. Those general principles include: (a) whether, and the extent to which, the issues were raised and argued before the trial judge; (b) the impact of the interlocutory appeal on the conduct of the trial, including whether the issues were raised below, whether a jury has been empanelled, and if the appeal would fragment the proceeding; (c) whether the issue is appropriate for determination on an interlocutory appeal before trial, or should be decided by reference to the trial as a whole; (d) the complexity of the issues and the potential impact of delay; and (e) the importance of determining the issue prior to the commencement or completion of trial, including whether delay would have the effect of defeating the human right in issue.

The Attorney-General submits, and I agree, that since the remarks in Wells were made, many aspects of the Charter’s operation have now been settled and it is no longer to be regarded as legislation which is novel or complex, invariably requiring lengthy consideration of issues. The recent decision of this Court in R v DA (a pseudonym)[20] is a good example of this.
[20][2016] VSCA 325.

In my view, it is appropriate in this case for the Charter issues to be ventilated, despite the interlocutory nature of the decision at first instance. Moreover, the remedy sought is a permanent stay. As such, the determination in this Court could resolve the entire proceeding.

It is convenient to deal with the issues raised as they were argued, beginning with the alleged breaches of the Charter before turning to the issue of whether the judge erred in applying the common law test for a permanent stay.

Is Baker impermissibly seeking collateral review of prosecutorial discretion?

The Attorney-General raises, as in effect a preliminary point, that Baker is impermissibly seeking a collateral review of the exercise of prosecutorial discretion by the DPP in the context of the police investigation. The Attorney-General submits (and the DPP supports those submissions) that at common law challenges cannot be made to decisions as to whether to proceed with a prosecution. Prosecutorial discretion is argued to be unexaminable by the courts.

The courts have been careful not to encroach on the exercise of prosecutorial discretion. In Maxwell v The Queen[21] Gaudron and Gummow JJ reiterated that, at common law, certain decisions in the prosecutorial process, including whether to prosecute and the particular charges to be laid, are immune from judicial review:

It ought now be accepted, in our view, that certain decisions involved in the prosecution process are, of their nature, insusceptible of judicial review. They include decisions whether or not to prosecute, to enter a nolle prosequi, to proceed ex officio, whether or not to present evidence and, which is usually an aspect of one or other of those decisions, decisions as to the particular charge to be laid or prosecuted. The integrity of the judicial process — particularly, its independence and impartiality and the public perception thereof — would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what.[22]

[21](1996) 184 CLR 501.

[22]Ibid 534 (citations omitted).

In Jago v District Court (NSW)[23] Mason CJ drew a distinction between prosecutorial decisions as to who is prosecuted and for what charges, and the question of whether the processes of the court would be abused by the continuation of the prosecution:

The question is not whether the prosecution should have been brought, but whether the court, whose function is to dispense justice with impartiality and fairness both to the parties and to the community which it serves, should permit its processes to be employed in a manner which gives rise to unfairness. Such a question arises when proceedings have been set in train by the bringing of charges.[24]

[23](1989) 168 CLR 23 (‘Jago’).

[24]Ibid 28 (emphasis added). See also Brennan J at 36-7, 39, 45, 54, Gaudron J at 77.

In Director of Public Prosecutions (SA) v B[25] Gaudron, Gummow and Hayne JJ spoke of the importance of the distinction between the decision to institute or continue criminal prosecutions, a decision executive in character, and the prevention of the abuse of court processes, a matter for the courts:

The line between, on the one hand, the decisions whether to institute or continue criminal proceedings (which are decisions the province of the executive) and on the other, decisions directed to ensuring a fair trial of an accused and the prevention of abuse of the court’s processes (which are the province of the courts) is of fundamental importance.[26]

[25](1998) 194 CLR 566.

[26]Ibid 579 [21]. See also Barton v The Queen (1980) 147 CLR 75, 95-7 (Gibbs ACJ, Mason J) (‘Barton’).

At common law, when a court is entertaining an application for a permanent stay of a criminal prosecution, the focus is upon whether the continuation of a proceeding within the court would be an abuse of process; it is not a review of a prosecutorial decision. The source of the jurisdiction to grant a stay is inherent to a court in order for it to protect the integrity of its processes where the administration of justice so requires. So too, although there is no power at common law for a court to review a decision of the executive to withhold public funding for legal representation, a court has the power to stay a criminal trial if that lack of funding will result in an unfair trial. In Dietrich v The Queen[27] the High Court famously recognised that the power to grant a stay may be exercised where the lack of representation deprives an accused of a fair trial:

In our opinion, and in the opinion of the majority of this Court, the common law of Australia does not recognize the right of an accused to be provided with counsel at public expense. However, the courts possess undoubted power to stay criminal proceedings which will result in an unfair trial, the right to a fair trial being a central pillar of our criminal justice system. The power to grant a stay necessarily extends to a case in which representation of the accused by counsel is essential to a fair trial, as it is in most cases in which an accused is charged with a serious offence.[28]

[27](1992) 177 CLR 292.

[28]Ibid 297–8 (Mason CJ and McHugh J). See also Toohey J at 356-7, Gaudron J at 369.

The power extends, in appropriate circumstances, to consideration of whether something that was done before the trial resulted in an accused being deprived of a fair trial leading to a miscarriage of justice.[29]
[29]Ibid 300, citing R v Glennon (1992) 173 CLR 592 where the Court held that, in the circumstances of the case, the adverse pre-trial publicity did not produce such a fundamental defect in the trial that there was nothing the trial judge could do to relieve against its unfair consequences.

The principles governing the grant of a permanent stay were reviewed by this Court in Clark (a pseudonym) v The Queen.[30] In Clark an accused sought a permanent stay on an interlocutory appeal made by the accused when he was facing the prospect of being tried for a fourth time after three previous trials where, on each occasion, the jury was unable to reach a verdict. The fourth trial was to be conducted on the basis of precisely the same evidence that had been led in each previous trial. The Court said:
[30][2016] VSCA 96 (Weinberg AP, Ashley and Coghlan JJA) (‘Clark’).

The power to order a permanent stay derives from the inherent (or, in some cases, implied) power of a court, including the County Court, to protect the integrity of its processes where the administration of justice so requires. It is a remedy that is invoked in order to prevent an abuse of process.
The concept of abuse of process extends to the use of the court’s processes in a way that is inconsistent with two fundamental requirements arising in criminal proceedings. These are, first, that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike. The second is that unless the court protects its ability to function in that way, its failure will lead to an erosion of public confidence. The court’s processes will be seen as lending themselves to oppression and injustice.
The continuation of proceedings that are unjustifiably and unfairly oppressive will, of itself, amount to an abuse of process. Moreover, as is well understood, a prosecution can be stayed if it has been instituted and maintained for an improper purpose.
In a criminal context, the term ‘abuse of process’ encompasses not only circumstances within the narrowest conception of that term (such as bringing a prosecution for an improper purpose, or maintaining one that is clearly foredoomed to fail), but also pursuing a criminal proceeding in a manner that is unfair, and gives rise to oppression.
It is only in an extreme case that a permanent stay of proceedings will be ordered. Necessarily, such cases will be rare. It follows that an applicant for a permanent stay must discharge a heavy onus if a court is to be persuaded to grant that remedy.
In determining whether a permanent stay should be granted, a court must have regard to the substantial public interest in having those charged with serious criminal offences brought to trial. A stay of that kind is tantamount to an immunity from prosecution, and is not therefore lightly to be granted.
There is more to a court’s decision as to whether a trial should proceed than fairness to the accused. An applicant for a stay must establish that the continuation of the proceeding would, not merely could, involve unacceptable injustice or unfairness. It must be shown that the continuation of the proceedings would be so unfairly and unjustifiably oppressive as to itself constitute an abuse of process.[31]

[31]Ibid [13]-[19] (citations omitted).

The question that arises in this proceeding is whether the loss of the opportunity to be sentenced in the Children’s Court means that the continuation of the prosecution of Baker in the County Court would be so unfairly and unjustifiably oppressive as to constitute an abuse of process. To the extent that there is reliance upon alleged breaches of the Charter, those breaches, if made out, may establish, or assist in establishing, the necessary oppression. Viewed within those limits there is no impermissible collateral review of prosecutorial discretion.

The Charter – has there been a breach of Baker’s human rights?
(1) What is the contravening conduct and who is the ‘public authority’?

Under s 38 of the Charter all public authorities are bound to act compatibly with the Charter. Conduct that is incompatible is unlawful:

38 Conduct of public authorities
(1) Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.

Section 38 has both substantive and procedural limbs; conduct incompatible with a human right is unlawful and so too is the making of decisions that fail to give proper consideration to a human right.[32] Baker relies on both limbs.
[32]Bare v IBAC (2015) 48 VR 129, 205 [245].

Section 39 describes when relief is available for a breach of the obligations owed by a public authority under s 38:

39 Legal proceedings
(1) If, otherwise than because of this Charter, a person may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful, that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter.[33]

[33]The Attorney-General seeks to rely upon what it characterises as the unexaminable nature of prosecutorial discretion to argue that the requirement of s 39 of the Charter is not met because there is no non-Charter ground of unlawfulness alleged. Insofar as s 39(1) is construed as requiring a litigant to seek relief on a non-Charter ground, in my view the submission of the Attorney-General should be rejected because Baker does identify a non-Charter ground of unlawfulness, namely, he seeks a permanent stay at common law on the basis that there would be a ‘fundamental defect’ in the continuation of the prosecution because it involves unacceptable injustice or unfairness or, in effect, amounts to an abuse of process. This is sufficient to amount to unlawfulness within the meaning of s 39. There is no requirement under s 39(1) that the decision under challenge must be susceptible to judicial review. See Clark [2016] VSCA 96, at [45] above; Bare v IBAC (2015) 48 VR 129, 258–9 [394].

There is some uncertainty as to the relevant public authority identified by Baker. There is also some uncertainty as to which conduct is alleged to be unlawful.

Baker’s grievance turns on the ‘initial inaction’ and the later decision ‘to charge him after the delay’. He also complains that the continuance of the prosecution was unlawful. The contravening conduct is alleged to consist in the failure of proceedings to be commenced within a certain time, that is, the failure to give proper consideration to filing, and the failure to file, criminal charges against Baker in the Children’s Court before he turned 19, thereby precluding him from taking advantage of the broad definition of ‘child’ in s 3 of the CYFA.[34] The contravening conduct is thus the timing of the prosecution, and the continuation of the prosecution in the light of that timing, not the prosecution itself.
[34]See [19] above.

Although Baker refers to a generic ‘public authority’, different entities were involved in the various stages of conduct about which he complains.

The delay in investigation and charging is attributed to Victoria Police, specifically the informant. Victoria Police is a ‘public authority’ under the Charter,[35] and an ‘act’ includes a failure to act.[36] However, Victoria Police is not joined as a party to the proceeding.
[35]Charter s 4(1)(d).
[36]Charter s 3 (definition of ‘act’).

A complaint that Baker was not ‘brought to trial as quickly as possible’ in contravention of s 23(2) of the Charter, or that the prosecution continued in breach of his rights under s 17(2) or s 24(1) of the Charter, involves not Victoria Police, but the DPP. It is the DPP who has responsibility to institute, prepare and conduct proceedings on behalf of the Crown, in respect of any indictable offence in the County Court.[37] The filing of the indictment in the County Court was the responsibility of the DPP. The DPP, or the Office of Public Prosecutions, is a ‘public authority’ for the purposes of the Charter on the basis of being ‘an entity established by a statutory provision that has functions of a public nature’ under s 4(1)(b) of the Charter.[38]
[37]Public Prosecutions Act 1994 s 22(1)(a).
[38]Momcilovic v The Queen (2011) 245 CLR 1, 78 [128] (Gummow J). The DPP is appointed under pt IIIA of the Constitution Act 1975: s 87AB(1).

In my view, the difficulty is resolved by treating the DPP as the relevant public authority but considering his conduct of continuing with the prosecution in the County Court in the light of the previous delay by the police.

Turning to the question of whether there has been a breach of Baker’s rights under the Charter, it is useful to recall that a helpful (although not mandatory) approach is to consider first whether a particular right relied on has been ‘engaged’ in the circumstances of the case; secondly, whether the public authority has ‘limited’ or interfered with the right by its action or inaction; and thirdly, whether any limitation imposed is reasonable and justified in the circumstances. This was the approach adopted by Hollingworth J in Sabet v Medical Practitioners Board (Vic):[39]

[I]n analysing whether there has been a breach of a human right under the Charter it is useful to ask the following three questions:
(a) Has a Charter right been engaged? (‘the engagement question’);
(b)If so, did the public authority impose any limitation on the right? (‘the limitation question’);
(c)Was any such limitation reasonable and justified within the circumstances set out in s 7(2)? (‘the justification question’).[40]

[39](2008) 20 VR 414 (‘Sabet’).

[40]Ibid 431 [108].

The justification question involves an assessment made by reference to those factors identified in s 7(2) of the Charter, including: (a) the nature of the right; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relationship between the limitation and its purpose; and (e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.[41] Where a public authority limits a right but the limit is justified, the human right is not breached, and there is no contravention of the obligation on a public authority to act compatibly with human rights under s 38 of the Charter.[42] As Garde J observed in Certain Children by their Litigation Guardian Sister Marie Brigid Arthur v Minister for Families and Children:[43]

A decision that is reasonable and demonstrably justified within the meaning of s 7(2) of the Charter is not incompatible with human rights and does not contravene the substantive obligation in s 38(1).[44]

[41]These factors are considered in the context of a statutory recognition that a ‘human right may be subject under law only to such reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom’: Charter s 7(2).

[42]PJB v Melbourne Health (2011) 39 VR 373, 440 [304]-[306].

[43][2016] VSC 796.

[44]Ibid [206] (citations omitted).

It follows here that if the DPP’s action, or inaction, engages a human right and limits that right it will be necessary to determine if that limit is reasonable before concluding that the obligation to act compatibly with human rights under s 38 has been breached.

It is convenient to turn to the issue of whether Baker’s loss of opportunity to be sentenced by the Children’s Court gave rise to a breach of the right to be tried without unreasonable delay.

(2)The right to be tried without unreasonable delay

All persons charged with a criminal offence have the right to be tried without unreasonable delay, pursuant to s 25(2)(c) of the Charter.[45]
[45]See [27] above.

Baker submits that the unreasonableness of the delay arises from its having caused him to suffer the prejudice of being ineligible to be dealt with by the Children’s Court. He argues that, in applying s 25(2)(c), it is permissible to consider the extent of delay before a prosecution is commenced. He relies on evidence given by the informant at the committal that the informant was not aware of the jurisdictional significance of Baker’s 19^th birthday. Specifically, he relies on the informant’s acknowledgement that, with the benefit of hindsight, the prosecution should have been prioritised and expedited. However, it should be noted that the informant also stated ‘I don’t see how that [a prosecution when Baker was under 19] would have been possible given the time constraints we had’.

The critical issue here under s 25(2)(c) is when time begins to run for the purpose of calculating whether a delay was unreasonable.

The DPP submits that, as a matter of textual analysis, the relevant period for determining whether a delay was unreasonable commences when a charge is laid, not from the date of the alleged commission of the offences or the date a complaint is made. In the alternative, he submits that, even on the best case for Baker, if time runs from the date on which Baker was first made aware of the allegations, March 2015, there was no significant delay.

Baker submits that an unreasonable delay in being tried can be caused by delay preceding the laying of charges. He relies on HM Advocate v R[46] in which the Privy Council required proceedings to be terminated where a delay of four years in commencing proceedings against an adult offender breached that person’s right to a trial without unreasonable delay under art 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.[47] He also relies on Attorney-General’s Reference [No 2 of 2001][48] where the House of Lords decided that, although time would usually commence to run, for the purpose of calculating whether a delay was unreasonable, from the time at which an accused was charged, nevertheless in an appropriate case, time could be deemed to have commenced to run earlier than the date on which charges were laid.
[46][2004] 1 AC 462 (PC) (‘HM Advocate’).
[47]Opened for signature 4 November 1950, 213 UNTS 222 (entered into force 3 September 1953). Art 6(1) relevantly provides: ‘In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.’
[48][2004] 2 AC 72 (‘Attorney-General’s Reference’).

In HM Advocate there were allegations of indecent behaviour made by two girls in 1995 which were investigated, and the appellant was cautioned and charged at that time. However, a decision was made by the prosecuting authority to take no further action. In 1999 and 2000 further allegations of indecent behaviour were made by different girls about the appellant and the appellant was charged and committed for trial. The Lord Advocate of Scotland added to the indictment the charges relating to the 1995 offences. The appellant sought to have the charges relating to the earlier offences dismissed on the basis that there had been an unreasonable delay in bringing those charges to trial contrary to his rights under art 6(1).[49] Significantly, the Crown conceded that there had been a breach of the reasonable time guarantee under art 6(1).[50] This was accepted. In light of the concession, little weight can be placed upon HM Advocate as relevant here.
[49]The real question in contest was whether the Lord Advocate had power to prosecute under s 57(2) of the Scotland Act 1998 (UK) c 46 once an incompatibility with art 6 was made out.
[50]HM Advocate [2004] 1 AC 462, 477 [30].

Moreover, although the concession was accepted, both Lord Hope and Lord Clyde expressed doubt as to its appropriateness given the high threshold to be met to establish that delay is ‘unreasonable’. Lord Hope said:

It is clear that the concept of reasonableness implies that a relatively high threshold must be crossed before it can be said in any particular case that a period of delay is unreasonable: Dyer v Watson ... As Lord Bingham put it, the threshold is a high one, not easily crossed. Among the factors to be taken into account in deciding where that threshold lies is the public interest ... A fair balance must be struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights.[51]

[51]Ibid 491-2 [76] (citations omitted).

Lord Clyde observed that for the delay to be ‘unreasonable’ it must be excessive and inordinate:

It is clear … that the threshold which has to be crossed in order that the delay may be categorised as unreasonable is a high one. … The period by itself must give rise to real concern. The complexity of the case, the conduct of the accused, and the manner in which the case has been handled by the administrative and judicial authorities have then all to be assessed. An unreasonable time is one which is excessive, inordinate and unacceptable.[52]

[52]Ibid 496 [92].

Furthermore, the delay in HM Advocate did not concern delay that occurred before the laying of charges. As noted, the appellant was charged in relation to the 1995 offences at the relevant time. The delay related to the failure to take any further action post-charge. Indeed, Lord Hope expressed the view, contrary to Baker’s case, that time begins to run from the date when charges are laid. He said:

For the purposes of article 6(1) time begins to run from the date on which the person is first made subject to a ‘criminal charge’.[53]

[53]Ibid 477 [31].

This also reflects the approach of the New Zealand High Court which regards lengthy delay between the date of offending and the day on which charges are formally laid as not infringing s 25(b) of the New Zealand Bill of Rights Act 1990 (‘NZBORA’), the comparable section to s 25(2)(c) of the Charter, although pre-trial delay, and any consequential prejudice, may be relevant to other rights.[54]
[54]See, for example, Hughes v Police [1995] 3 NZLR 443, 453-4 (HC). See Andrew Butler and Petra Butler, The New Zealand Bill of Rights Act: A Commentary (LexisNexis, 2^nd ed, 2015) (‘Butler & Butler’) 23.3.18. In R v Coghill [1995] 3 NZLR 651, 659 the New Zealand Court of Appeal held that, in the individual circumstances of the case, it was ‘unnecessary … to decide for the purpose of s 25(b) of the Bill of Rights (the right of a person charged with an offence to be tried without undue delay) what starting point in time should be taken’.

In Attorney-General’s Reference the House of Lords considered the question of when the relevant time commenced for the right to be engaged. Baker was correct in his submission that the Court did not lay down an inflexible rule but Lord Bingham emphasised that ordinarily the relevant time is the time when an accused is formally charged. He said:

As a general rule, the relevant period will begin at the earliest time at which a person is officially alerted to the likelihood of criminal proceedings against him. ... In applying it, regard must be had to the purposes of the reasonable time requirement: to ensure that criminal proceedings, once initiated, are prosecuted without undue delay; and to preserve defendants from the trauma of awaiting trial for inordinate periods. The Court of Appeal correctly held ... that the period will ordinarily begin when a defendant is formally charged or served with a summons, but it wisely forebore ... to lay down any inflexible rule.[55]

[55][2004] 2 AC 72, 91 [27]. All of their Lordships (Lord Nicholls, Lord Steyn, Lord Hoffmann, Lord Hope, Lord Hobhouse, Lord Millett, Lord Scott and Lord Rodger) agreed with Lord Bingham on this point.

He indicated that time may run from a date after a suspect has been questioned under caution; however, as is apparent from the following observation, this was because of the United Kingdom legislation that required the charging process to be set in train after the interviewing of a suspect under caution:

Nor, ordinarily, will time begin to run until after a suspect has been interviewed under caution, since Code C made under section 66 of the Police and Criminal Evidence Act 1984 generally requires the charging process to be set in train once an interviewing officer considers that there is sufficient evidence to prosecute a detained person and that there is sufficient evidence for a prosecution to succeed. In Howarth v United Kingdom ... the European Court held that the period had begun with the first police interview of the defendant, but only 4½ months separated that interview from the charge and attention was largely focused ... on the passage of time between sentence and final determination ... Arrest will not ordinarily mark the beginning of the period. An official indication that a person will be reported with a view to prosecution may, depending on all the circumstances, do so.[56]

[56]Ibid 91 [28].

Attorney-General’s Reference was considered by the Australian Capital Territory Supreme Court, both at first instance (Burns J) in R v Nona,[57] and on appeal by the Court of Appeal (Higgins CJ, Penfold and Dowsett JJ) in Nona v The Queen,[58] relied upon here by the DPP.
[57](2012) 6 ACTLR 203.
[58](2013) 8 ACTLR 168.

In R v Nona, Nona had allegedly engaged in sexual offending with the two young daughters of his then partner between September 1995 and September 1996, JG and HG, with the result that JG became pregnant at the age of 13. Nona left the jurisdiction and there was a delay in obtaining blood samples to establish DNA evidence. An information was laid and a warrant issued in 1998. Nona was unaware of this. As a result of a series of decisions by senior members of the Australian Federal Police which the judge described as ‘inappropriate, if not shocking’,[59] no steps were taken to extradite or locate Nona between 1998 and 2008. The result was that Nona was not served with summonses alleging the offences against JG until March 2009. He was committed for trial with respect to the offences against JG in December 2009. His trial was listed for July 2012. HG did not complain to the authorities until 2010 whereupon the authorities acted with appropriate expedition to investigate and then lay further charges against Nona.
[59]R v Nona (2012) 6 ACTLR 203, 213 [44].

Burns J identified the objectives behind the need to prevent undue delay as preventing oppressive pre-trial detention, minimising an accused’s anxiety and limiting any prejudice to the preparation of a defence. He said:

In determining the appropriate time for the commencement of calculation of delay in the present case it is important to remember why undue delay in the trial of persons charged with criminal offences is proscribed. In Mills, Higgins CJ cited with approval the statement made by the Supreme Court of Canada in Askov v The Queen that undue delay was proscribed:
• to prevent oppressive pre-trial incarceration (or limitation of liberty) continuing beyond what is necessary;

• to minimise the anxiety and concern of the accused;
• to limit impairment of or prejudice to the defence of the charges.[60]

[60]Ibid 223 [87] (citations omitted). This was confirmed on appeal in Nona v The Queen (2013) 8 ACTLR 168, 214-5 [240]. These considerations were also affirmed by the Canadian Supreme Court in R v Morin [1992] 1 SCR 771 (‘Morin’) in the context of considering the right of a ‘person charged with an offence’ ‘to be tried within a reasonable time’: Canada Act 1982 (UK) c 11, sch B pt 1, s 11(b) (‘Canadian Charter of Rights and Freedoms’).

He concluded that, in the context of an alleged contravention of s 22(2)(c) of the Human Rights Act 2004 (ACT), comparable to s 25(2)(c) of the Charter, delay should be calculated from the date of service of the summons which alleged the offences.[61] Burns J said:

In my opinion a plain reading of s 22(2)(c) suggests a temporal connection between the rights recognised by the section and the existence of charges against the person. Section 22(2)(c) recognises a right which resides in a charged person. It is not a right which could be asserted by the applicant prior to him being charged. The applicant had no right to insist that the authorities charge him. This strongly supports adoption of the date that the summonses were issued, or that they came to the attention of the applicant, as the appropriate date for commencement of the calculation of delay.
…
… I consider that calculation of any delay with respect to the charges concerning both JG and HG should date from the dates the applicant was served with summonses alleging these offences.
...
In the instant case the length of relevant delay is not significant. Had the charges concerning JG come on for trial within two to two and a half years of the commencement of proceedings there would, in my opinion, have been no breach of the accused’s rights under s 22(2)(c). The actual delay of three years and four months does not reveal egregious delay.[62]

[61]Section 22(2)(c) provides: ‘Anyone charged with a criminal offence is entitled to the following minimum guarantees, equally with everyone else: … (c) to be tried without reasonable delay; …’.

[62]R v Nona (2012) 6 ACTLR 203, 224 [90], [92], 225 [99].

The issue of the length of delay under the Human Rights Act was revisited by the ACT Court of Appeal, in the course of its dismissal of the appeal.[63] The leading judgment was given by Dowsett J, relying upon Attorney-General’s Reference. He considered the meaning of the word ‘charged’ in this context:

In s 22 the word ‘charged’ … describes a particular status which attracts certain rights, including the right to trial without unreasonable delay. The status is that of a ‘charged’ person. This case has, to date, proceeded on the basis that any delay should be taken as commencing at the time at which the relevant person became a ‘charged’ person. This approach is consistent with the approach taken by the House of Lords in Re Attorney-General’s Reference (No 2 of 2001), upon which Burns J relied.[64]

[63]Nona v The Queen (2013) 8 ACTLR 168.

[64]Ibid 223–4 [272].

He also noted that the majority of the Supreme Court of Canada in R v Kalanj[65] had held ‘that time started from the lodging of the information, a step which may have led to the issue of a warrant or a summons’.[66] This was affirmed in Morin.[67] Dowsett J observed:

[T]hat outcome seems to have depended substantially upon domestic criminal practice. It is clear from both the English and the Canadian cases that the word ‘charge’ may have a number of meanings. Both decisions recognize the relevant point as being that at which the investigative process concludes and the judicial process commences.[68]

[65][1989] 1 SCR 1594 (‘Kalanj’).

[66]Nona v The Queen (2013) 8 ACTLR 168, 225 [276].

[67][1992] 1 SCR 771. In Morin, Sopinka J, for the majority stated that: ‘[T]his factor [the length of the delay] requires the court to examine the period from the charge to the end of the trial. Charge means the date on which an information is sworn or an indictment is preferred (see Kalanj ...). Pre-charge delay may in certain circumstances have an influence on the overall determination as to whether post-charge delay is unreasonable but of itself it is not counted in determining the length of the delay’(at 789). His Honour noted that ‘[i]f … the applicant is in custody, a shorter period of delay will raise the issue’ (at 789). He had listed (at 787-8) the factors to be considered in an assessment of reasonableness as: (1) the length of the delay; (2) waiver of time periods; (3) the reasons for the delay including (a) inherent time requirements of the case; (b) actions of the accused; (c) actions of the Crown; (d) limits on institutional resources; and (e) other reasons for delay; and (4) prejudice to the accused. These factors are consistently applied in New Zealand courts: Butler & Butler, above n 54, 23.3.26.

[68]Nona v The Queen (2013) 8 ACTLR 168, 225 [277] (emphasis added).

He rejected the view that, in the ACT, time ran from the laying of the information:

There is considerable difficulty in identifying the laying of the information as the charging of the accused person. That act has, itself, no particular consequences. At least in theory, the magistrate or other issuing officer may refuse to issue a summons or warrant, in which case the proceedings could go nowhere. Further, the court does not, itself, serve such process. Thus it would not be able to enforce service other than by declining to proceed with the matter.[69]

[69]Ibid 228 [292]. Note that this differs from the practice in Victoria where s 12(4) of the CPA provides that the registrar must issue a summons or warrant for arrest on the filing of a charge-sheet. See [84] below.

Dowsett J considered the approach adopted by O’Bryan J of this Court in Campagnolo v Attrill[70] to the meaning of the word ‘charged’ in the context of a prohibition on a preliminary examination after three months from the date on which ‘the accused person has been charged with any offence to which the preliminary examination relates’.[71] O’Bryan J considered various legal dictionaries and authorities and said:

In my view, the expression ‘charged with any offence’ in section 47A carries the technical legal meaning Mr McArdle contends for. It is used in the technical legal sense of appearing before a competent court to answer an accusation made on summons or information. Section 47A is not concerned with police procedures in a police station when a person may be ‘charged’ or ‘informed against’ or ‘summonsed’, or ‘bailed’ to appear in a court on some future occasion. It operates when a person is formally charged before a court.[72]

[70][1982] VR 893.

[71]This was in the context of a provision of the Magistrates (Summary Proceedings) Act 1975 cited in Nona v The Queen (2013) 8 ACTLR 168, 225 [278].

[72]Campagnolo v Attrill [1982] VR 893, 900. Dowsett J noted that this approach was considered in Kalanj but discounted. See Nona v The Queen (2013) 8 ACTLR 168, 225–6 [279]–[280].

Although he saw much in favour of the view adopted by O’Bryan J, which depends upon a formal process in court, Dowsett J held that what is essential is that a person be notified, by means of an official authorisation, that he or she is to be tried for allegedly criminal conduct. He said:

The process prescribed by the Magistrates Court Act [1930 (ACT)] plainly contemplates execution of the warrant or service of the summons or court attendance notice as being an integral part of the process for commencing proceedings. I conclude that in the ACT, a person is charged, at the earliest, when he or she is arrested pursuant to a warrant or served with a summons or court appearance notices.[73]

[73]Nona v The Queen (2013) 8 ACTLR 168, 228 [295].

The Commission seeks to impugn Dowsett J’s reliance upon Attorney-General’s Reference in concluding that what is essential is a system of notification that is ‘officially authorized, not simply of notification by an official’[74] because Lord Bingham appeared to extend the relevant time from which delay was to be measured by referring to the time after a suspect has been interviewed under caution.[75] This might be thought to be notification by an official but not notification which is officially authorised, considered by Dowsett J as critical. However, as noted, it is clear from the substance of Lord Bingham’s judgment that the basis upon which he considered that time might sometimes run from the date a suspect was interviewed under caution was that this set in train the process of laying charges. Lord Bingham made it clear that, ordinarily, time will run from the date when a suspect is formally charged or served with a summons.[76]
[74]Ibid.
[75]See [71] above.
[76]See [70] above.

Higgins CJ agreed with the conclusions of Dowsett J.[77] Penfold J agreed generally with Dowsett J on this issue and emphasised that time does not begin to run as soon as a suspect is asked questions. Her Honour said:

In particular, for present purposes I agree that the period that will be relevant for an assessment of unreasonable delay is the period beginning when a person is arrested pursuant to a warrant or summonsed to appear before the court, although there may also be cases in which an arrest without warrant is the appropriate starting point for the period. However, the period does not in my view begin when an information is sworn without the knowledge of the person, and it certainly does not begin by reason of a police officer merely asking a person about a matter that later turns out to be relevant to proceedings against that person.[78]

[77]Nona v The Queen (2013) 8 ACTLR 168, 179 [52].

[78]Ibid 183 [80].

I accept the force of the reasoning of the ACT Court of Appeal in Nona v TheQueen that a person is ‘charged’ in the context of the right to be tried without unreasonable delay, as protected under human rights legislation, from the time the person is notified, by means of an official authorisation, that he or she is to be tried for allegedly criminal conduct. This interpretation achieves the objectives behind the proscription on unreasonable delay, particularly, the avoidance of oppressive pre-trial detention and the minimisation of trauma and anxiety.[79] Furthermore, as the language of s 25(2)(c) of the Charter is substantially identical to s 22(2)(c) of the Human Rights Act, it would be mistaken to construe the Charter right as existing in isolation. Given the similarity of both statutory language and context, this Court ought not depart from the interpretation adopted by the ACT Court of Appeal, as a matter of comity between intermediate appellate courts, without a compelling reason to do so.[80] In my view, there is no compelling reason to do so; on the contrary, I consider that the interpretation adopted by the ACT Court of Appeal is correct.
[79]See [70] and [74] above: Attorney-General’s Reference [2004] 2 AC 72, 91 [27]; R vNona (2012) 6 ACTLR 203, 223 [87].
[80]RJE v Secretary to the Department of Justice (2008) 21 VR 526, 553-4 [104] (Nettle JA). See also Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, 151-2 [135].

In Victoria, the filing of a charge-sheet in the Magistrates’ Court formally marks the time when a criminal proceeding is commenced, pursuant to s 6(1) of the CPA. If the charge-sheet contains a charge for an indictable offence that cannot be heard summarily, the proceeding must be listed for a filing hearing.[81] A filing hearing is the first stage in a committal proceeding.[82] Relevantly, if a charge-sheet has been filed with a registrar, he or she must, pursuant to s 12(1) of the CPA, either issue a summons to the accused or a warrant of arrest;[83] there is no discretion.[84] Section 12(5) of the CPA directs that a warrant to arrest is not to be issued, at first instance, unless there is sworn evidence that it is probable that an accused will not answer a summons.[85] A summons requires the suspect to appear on a specified date before a Magistrates’ Court at a specified time to meet the allegations in the charge-sheet.[86] If a summons has been issued to an accused to answer a charge of committing an indictable offence, the date fixed for the filing hearing must be 28 days after the charge-sheet is filed. The summons to answer allegations in the charge-sheet must be served personally,[87] by giving a copy of the document to the person to be served, or if the person does not accept the copy, putting the copy down in the person’s presence and telling the person the nature of the document, or leaving a copy of the document at the person’s last known or usual place of residence with a person who appears to be of or over the age of 16 years.[88] Where the charges include an indictable offence, the summons must be served at least seven days before the date fixed for the filing hearing.[89] At the filing hearing the magistrate will explain the need to obtain legal representation and the nature of the proceeding.[90] If the suspect fails to appear on the due date with respect to an allegation of an indictable offence, the court may issue an arrest warrant to bring the accused to court.[91]
[81]CPA s 10(4).
[82]CPA s 98.
[83]The exception, here irrelevant, is where a notice to appear has been served on an accused where a police officer suspects a person has committed a summary offence or an indictable offence triable summarily: CPA s 21.
[84]CPA s 12(4).
[85]CPA s 12(5). The preference for a summons to be issued may also be overridden if there is evidence that the accused may abscond or if another Act, or a good cause, requires the issuing of a warrant for arrest.
[86]CPA s 15(1).
[87]CPA s 16(1).
[88]CPA s 391.
[89]CPA s 16(b).
[90]A date may also be fixed for a committal mention hearing, a period of time may be fixed for the service of a hand-up brief, and other orders may be made that the court considers appropriate.
[91]CPA s 81.

Time begins to run, for the purpose of assessing whether delay is unreasonable under s 25(2)(c) of the Charter, when a person is ‘charged’ with a criminal offence. Within this context, in my view, a person is ‘charged’ with a criminal offence when he or she is served with a summons to answer the charges laid or, if no summons has been issued, when he or she has been served with an arrest warrant.

As mentioned, charges were laid against Baker on 27 July 2015 and a summons was issued for him to appear in the Bendigo Magistrates’ Court.[92] The filing hearing took place on 2 September 2015.[93]
[92]See [14] above.
[93]See [15] above.

It would appear that Baker was served on or about 27 July 2015 with a summons to appear; hence, this is the earliest date from which he was ‘charged’ within the meaning of s 25(2)(c). A committal was conducted on 22 December 2015.[94] The matter was listed for hearing on 24 May 2016, ten months after Baker was ‘charged’.[95] This period of time cannot be described as excessive, inordinate or unacceptable,[96] and nor was it submitted to be so. In my view, the right of a person charged with a criminal offence to be tried without unreasonable delay was not engaged in the circumstances of this case. Baker’s submission fails at the first stage of analysis identified in Sabet, ‘Has a Charter right been engaged?’.[97] The interests which the right to be tried without unreasonable delay serves to protect have not been injured. There has been no pre-trial detention, the preparation of Baker’s defence has not been prejudiced by the ten-month delay since he was charged and whatever anxiety and concern he may have experienced since being charged have not been aggravated by an inordinate delay.
[94]See [16] above.
[95]Ibid.
[96]See [67] above.
[97]See [56] above.

The right to be tried without unreasonable delay is not relevant here.

(3) The right to a fair trial

Baker submits that being deprived of the opportunity of being dealt with by the Children’s Court amounts to a breach of his right to a fair hearing. He submits that the jurisdiction of the Children’s Court is one focused upon the welfare and rehabilitation of an offender to the exclusion of principles of general deterrence.[98]
[98]Webster (a pseudonym) v The Queen [2016] VSCA 66 [12] (‘Webster’) (Maxwell P and Redlich JA); CNK v The Queen (2011) 32 VR 641 (Maxwell P, Harper JA, Lasry AJA) (‘CNK’).

The right to a fair hearing is clearly engaged here. However, the DPP submits, and I agree, that there is nothing to suggest that Baker will not receive a fair hearing from a competent, independent and impartial tribunal in the County Court.

The Commission accepts that reliance upon the fair trial right is problematic because the process that Baker will experience in the County Court cannot objectively be said to be unfair. Although, it submits, Baker should have been tried in a different jurisdiction, this does not change the objective position or render the trial unfair. In my view, Baker’s attempt to establish a breach of the fair trial right should be rejected.

(4) The right of a child to the protection of his or her best interests

Baker submits that the right he had as a child to the protection of his best interests requires that the jurisdictional and welfare considerations of the impact that undue delay would have on him should have been taken into account in determining the timing of his prosecution. He alleges that those matters were not taken into account when they should have been. He relies on the scope of the right as identified by Joseph, Schultz and Castan with respect to art 24 of the ICCPR, upon which s 17 is generally modelled, as requiring special protection to be afforded to a child:

Article 24 ensures a child’s rights to those measures of protection required of his or her family, society, and the State. This is more than mere reinforcement of the rights guaranteed elsewhere in the Covenant; the laws of a State Party must reflect the special status of a minor and afford special protection to the child. Indeed, it seems that article 24 acts to ‘top up’ the other civil rights offered to children by the ICCPR’s other guarantees by more explicitly requiring positive measures of protection.[99]

[99]Sarah Joseph, Jenny Schultz and Melissa Castan, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (OUP, 2^nd ed, 2004), 626 [21.09] (citations omitted). Article 24 provides: ‘Every child shall have without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor on the part of his family, society and the State’. The ‘best interests’ principle in s 17(2) is enshrined in the Convention on the Rights of the Child (art 3(1)) and has become widely accepted in international law. See DPP v SL [2016] VSC 714 [7].

The right of a child to protection has been relied upon in the ACT in the context of a criminal prosecution for the purpose of protecting a child witness from coercive cross-examination.[100]
[100]R v YL (2004) 187 FLR 84, 92 [31] (Crispin J) (ACT Supreme Court) with respect to s 11(2) of the Human Rights Act which is substantially similar to s 17(2) of the Charter: ‘Every child has the right to the protection needed by the child because of being a child, without distinction or discrimination of any kind’. The Court refused to make an order compelling a stepson to attend court against his will.

Baker submits that the specific protection afforded to a child under the CYFA is a special measure for the purpose of s 17(2)[101] and that this is apparent from the type of matters the Children’s Court is to take into account in sentencing, as identified in s 362(1) of the CYFA:
[101]In New Zealand the Children, Young Persons and Their Families Act 1989 (NZ) (‘CYPTFA’) has been recognised as a special measure that gives effect to rights aimed at the protection of children. In R v Hamilton HC Whangarei T030025, 16 September 2003 (‘Hamilton’), Baragwanath J said (at [47]) that the CYPTFA ‘is a specific expression of the policy expressed … in s 25(i)’ of NZBORA which provides: ‘Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights ... (i) The right, in the case of a child, to be dealt with in a manner that takes account of the child’s age’. In Hamilton the judge excluded evidence of a child’s confession which was ‘blurted out under pressure’ in response to a question from his mother in the presence of the police because it breached the right not to be compelled to confess guilt construed in accordance with s 25(i). Section 322 of the CYPTFA provides that a judge of the Youth Court may dismiss a charge ‘if the Judge is satisfied that the time that has elapsed between the date of the commission of the alleged offence and the hearing has been unnecessarily or unduly protracted’. For a discussion of the relationship between s 25(i) of NZBORA and the CYPTFA see Butler & Butler, above n 54, 23.3.7, 23.11.13, 23.11.17.

362 Matters to be taken into account
(1) In determining which sentence to impose on a child, the Court must, as far as practicable, have regard to—
(a) the need to strengthen and preserve the relationship between the child and the child's family; and

(b) the desirability of allowing the child to live at home; and
(c) the desirability of allowing the education, training or employment of the child to continue without interruption or disturbance; and
(d) the need to minimise the stigma to the child resulting from a court determination; and

(e) the suitability of the sentence to the child; and
(f) if appropriate, the need to ensure that the child is aware that he or she must bear a responsibility for any action by him or her against the law; and
(g) if appropriate, the need to protect the community, or any person, from the violent or other wrongful acts of the child.[102]

[102]Baker also argues that the connection between the CYFA and the human right of a child to the protection of his or her best interests is evident from the amendment to the definition of ‘child’ from a person under the age of 17 to a person under the age of 18 enacted specifically for the purpose of bringing Victoria into conformity with the ICCPR: Second Reading Speech, Children and Young Persons (Age Jurisdiction) Bill 2004: Victoria, Parliamentary Debates, Legislative Assembly, 16 September 2004, 566 (Rob Hulls, Attorney-General).

Section 10 of the CYFA provides that the Children’s Court operates on the principle that ‘the best interests of the child must always be paramount’. There are also additional procedural protections that apply to children under s 522 of the CYFA.[103]
[103]For example, s 522 provides that as far as practicable the Court must in any proceeding take steps to ensure that the proceeding is comprehensible to the child, the child’s parents, and all other parties who have a direct interest in the proceeding. Sections 10 and 522 are emphasised by the Commission.

Baker emphasises the mandatory protective approach of the Children’s Court to dealing with persons under its jurisdiction in respect of criminal matters by contrast with the approach of the criminal sentencing regime applicable in courts dealing with adult offenders. The sentencing regimes in the Children’s Court and those in general courts for dealing with adult offenders are, as this Court has recognised, ‘strikingly different’.[104] Vincent JA acknowledged this in R v Evans:[105]

[There are] a number of matters to which a sentence in the Children’s Court must have regard and which differ in kind and emphasis from roughly similar provisions in the Sentencing Act 1991 (Vic). Underlying this system is the attribution of considerable significance to the generally accepted immaturity of the young people who appear before the Children’s Court and the need, in the interests of the community and the young persons concerned, to endeavour to divert them from engagement in anti-social conduct at that early stage of their lives. These considerations can and do lead to dispositions which would be regarded as entirely inappropriate in the case of older and presumably more mature individuals.[106]

[104]CNK (2011) 32 VR 641, 662-3 [80].

[105][2003] VSCA 223 (with whom Batt JA agreed) (‘Evans’), approved in CNK (2011) 32 VR 641, 663 [81].

[106]Evans [2003] VSCA 223 [44] (citations omitted).

Furthermore, Baker submits that the extended definition of ‘child’ in the CYFA that permits persons under the age of 19 to be dealt with in the Children’s Court if the alleged offending took place when the person was under the age of 18, as explained above,[107] is a necessary incident of the protection to be afforded to children, under s 17(2). This recognises that, where possible, young offenders are to be protected from the consequences of their own immaturity by avoiding the imputation of adult criminal responsibility for conduct that occurred when they were children.[108] He relies on the right to a ‘child-specific jurisdiction’ under s 25(3) in support of his right to the protection of his best interests under s 17(2).[109]
[107]See [19] above.
[108]The significance of immaturity, and the biological or developmental reasons for immaturity, were recognised by this Court in Webster [2016] VSCA 66 [8], [26]-[28] (Maxwell P and Redlich JA).
[109]See DPP v SL [2016] VSC 714 [11].

The DPP submits that an acceptance of Baker’s argument would be contrary to the clear statutory definition of ‘child’ in s 3 of the Charter which only applies to persons under the age of 18. By the time Baker became known to Victoria Police, Baker had already turned 18 (on 1 June 2014). The complainant did not report the matter to the police until 5 June 2014, after Baker had turned 18. By then Baker was no longer a ‘child’ for the purposes of the Charter and thus the right under s 17(2) did not apply to him; the circumstances were ones where the right of a child to have his or her best interests protected was not engaged. The DPP argues that to hold otherwise would be to depart from the clear statutory language of the Charter and would fail to recognise that the current approach to the interpretive task requires courts both to begin and end with the text, bearing in mind context and the background of the Act as a whole.[110]
[110]Thiess v Collector of Customs (2014) 250 CLR 664, 671 [22]; Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503, 519 [39].

The Commission supports Baker’s submissions by pointing to what it describes as the profound adverse consequences of the inadvertence and ignorance of a public authority. Specifically, the Commission argues, and I agree, that, as at the date of the offending, when Baker was under 18, he was entitled to the protection of his best interests as a child in the form of access to the jurisdiction of the Children’s Court for the hearing of any future charges arising from the offending. Baker continued to maintain that entitlement from the date of his offending until it expired when he turned 19. This was a straightforward consequence of the definition of ‘child’ under s 3 of the CYFA. The relevance of the Charter is that the entitlement Baker acquired under the CYFA as at the date of the offending, at a time when he satisfied the definition of ‘child’ under the Charter, was protected under s 17(2) as a special measure for children. His human right to the protection of his best interests, under s 17(2), included, in the circumstances of the case, that special measure. This had the consequence that the procedural and substantive obligations that the Charter imposes upon public authorities were enlivened. This is not to replace the definition of ‘child’ in the Charter for that in the CYFA, as the DPP at times submitted orally, because it relies upon the definition of ‘child’ in the Charter being satisfied, not being replaced. In other words, as at the date of the offending, Baker was a ‘child’ under the Charter and on that date he had an entitlement to the processes of the Children’s Court until he turned 19. The Charter required that the relevant public authorities were to act compatibly with that form of special protection afforded to children in Victoria, and were to give proper consideration to Baker’s right to that special protection. Those obligations relevantly applied both at the time the complaint was made to the police and at the time Baker was interviewed.

In my view, in the individual circumstances of the case, the right under s 17(2) of the Charter was engaged. The question then arises: ‘Did the public authority impose any limitation on the right?’.[111]

(5) Have Baker’s rights been interfered with – to what extent?

[111]See [56] above.

Baker submits that to answer the question of whether his right to the protection of his best interests, as a child, has been limited or interfered with, and, if so, to what extent, requires a comparison between a sentencing disposition under the CYFA and a sentencing disposition under the Sentencing Act 1991. He submits that there are significant practical differences between those sentencing dispositions. For example, he submits that if he is convicted in the County Court he will have a permanent criminal record but if convicted in the Children’s Court this would cease to be a ‘previous conviction’ after 10 years.[112] In particular, Baker seeks to contrast the types of community-based orders that can be made for an adult offender, a Community Correction Order (‘CCO’), available under the Sentencing Act, and a Youth Supervision Order (‘YSO’), available under the CYFA.
[112]CPA s 3 (definition of ‘previous conviction’).

Baker submits that the management of offenders on a YSO involves a strong emphasis on promoting the development of a child into a responsible person, recognising that a person who is subject to a YSO is to a greater or lesser extent still in need of assistance to achieve maturity. A specific objective is connecting the child to relevant child focused services. Furthermore, breach of a YSO is not an offence punishable by a separate penalty nor is it a separate offence for a person subject to a YSO to contravene a direction of the Secretary to the Department of Human Services. A failure to observe a condition of a YSO may lead to a notice to appear or, if there is no appearance, a warrant of arrest. The child may be brought before the magistrate who sentenced the person and the YSO may be varied or confirmed, with a direction to comply, or revoked and another sentence imposed that is just. The Secretary to the Department of Human Services must prepare a report on the extent of compliance and with a recommendation on an appropriate sentence.[113]
[113]See CYFA ss 392-394.

By comparison, breach of a CCO is a separate offence and breach may lead to three months’ imprisonment, unless the offender has a reasonable excuse,[114] or, in some circumstances, for example, leaving a place where he or she is directed to attend, to a fine.[115]
[114]Sentencing Act s 83AD.
[115]Ibid s 83AE. See ss 83AG-83AZ with respect to the procedure for a contravention offence.

Baker argues that the primary concern of the adult corrections system is to maintain a safe and secure community; motivate offenders to engage in and continue with programs and services; identify and monitor offenders’ risks and needs and thereby coordinate and prioritise offenders’ access to appropriate programs, services and activities. He submits that while rehabilitation is one of the objectives of the adult corrections system, the primary focus is upon risk management and community protection.

The DPP denies that there is such a contrast between a YSO and a CCO. He submits that while breach of a YSO is not an offence punishable by a separate penalty it is nevertheless the case that breach of a YSO may, as mentioned, lead a court to vary or confirm the order, or, importantly, revoke the YSO and impose any sentence the court thinks just. He emphasises that while a court dealing with an offender who has breached a CCO may impose a penalty of up to three months’ imprisonment, it is not required to do so. The court may find the charge proven and make no further order. Furthermore, before the making of a CCO a court will typically order a pre-sentence report to gain advice on the suitability of conditions to be imposed.[116] So too if it is considering ordering detention to a youth justice centre.[117]
[116]Sentencing Act s 8A. The Court must order a pre-sentence report unless the sole condition is unpaid community work of up to 300 hours.
[117]Ibid.

Moreover, the DPP points to the departmental protocols that govern Corrections Victoria, the entity responsible for the direction, management and operation of Victoria’s corrections system. The protocols guide the management of adult offenders, including those given a community-based disposition such as a CCO. He submits that the protocols demonstrate that it is the departmental intention to cater appropriately for the rehabilitative needs of a young offender subject to a CCO. While the ‘Statement of Purpose’ in the Correctional Management Standards 2007 records that the primary purpose of Community Correctional Services (‘CCS’) ‘is to enhance community safety’, it provides that it will:

·Facilitate access to appropriate programs and services aimed to reduce the risk of re-offending;
·Assist offenders to adopt productive, law abiding lifestyles in the community.[118]

[118]Department of Justice (Vic), Correctional Management Standards for Community Correctional Services 2007, Version 2, September 2007.

Critically, the Statement of Purpose also provides that, to assist those objectives, CCS will individualise its programs and tailor its services to meet particular needs related to the age of the offender. The CCS will:

·Assess and manage offenders according to their risk of re-offending and/or the degree of risk they present to the community.
·Ensure that programs to reduce re-offending address their individual needs, are responsive to their learning styles, are based on sound theory and are rigorously evaluated.
·Tailor its services to meet particular needs related to age, ethnicity, gender or disability.

Moreover, ‘young adult offenders’ are recognised as a specific offender group by CCS that requires age-sensitive treatment:

D 1.0 Young Adult Offenders
D1.1 Outcome
Young adult offenders subject to case management are supervised in a manner that takes into account their specific needs and are provided with work placements and programs which will enhance their employability.
Corrections Victoria defines a young adult offender as being any offender aged between 17 and 24 years of age.

D1.2 Specific Outputs
CCS will ensure that young adult offenders:
(a)have access to interventions that are tailored, taking into account their specific learning styles and needs, in the context of reducing re-offending, community protection, risk to the community, and of self harm;
(b)are provided with written and verbal information about their order and how to comply with it in terms that ensures their understanding;
(c)are provided, through appropriate community work placements, the opportunity to develop a range of work related skills;
(d)are referred and supported to undertake vocational, educational and training programs to enhance their employability; and
(e)ensure that locations allocate a designated young adult offender portfolio holder to develop and promote inter-agency and inter-departmental liaison.

Where offenders are on CCOs the CCS is to ensure that they are ‘supervised at a level of intensity that is commensurate with their level of assessed risk and need’.[119]
[119]Ibid B2.0 Offender Management, B2.2 Specified Outputs, (i)(ii).

The objectives of CCS are reinforced by the adoption of a Corrections Victoria Offender Management Framework aimed at, amongst other things, increasing self-responsibility. The age of the offender is a factor to be taken into account. Practices are encouraged that ‘facilitate learning in an individual and subsequently lead to changed behaviour (individual factors that must be considered include treatment motivation, learning style, age, gender, culture and various barriers to participation)’.[120] The theme of the protocols is the importance of individualised offender management.[121]
[120]Department of Justice (Vic), Corrections Victoria, Offender Management Framework – Achieving the Balance, May 2010, 9 (‘the Framework’).
[121]For example, with respect to the need to increase self-responsibility, the Framework states that (at 10–11): ‘It is important that offenders are assisted to have responsibility for developing their plans to increase their sense of personal responsibility, autonomy and choice in the change process, thereby increasing motivation to change behaviour and sustain that change’ and recognises that ‘Offender management processes need to be individualised to be able to engage the offender, facilitate learning, motivate and sustain behaviour change. Individualised offender management identifies the offender’s specific issues/needs and how to manage/address them appropriately’.

In my view, there is not the stark contrast between the community-based sentencing disposition available in the County Court and that available in the Children’s Court for which Baker contends. In particular, I reject the proposition that a CCO is primarily punitive and a YSO is primarily rehabilitative. A CCO is designed to address the specific circumstances of the offender.[122] In Boulton v The Queen[123] this Court confirmed both the individualised nature of a CCO and the capacity of this sentencing disposition to encourage rehabilitation:

The CCO is a flexible sentencing option, enabling punitive and rehabilitative purposes to be served simultaneously. The CCO can be fashioned to address the particular circumstances of the offender and the causes of the offending, and to minimise the risk of re-offending by promoting the offender’s rehabilitation.[124]

[122]Sentencing Act s 36(1).

[123](2014) 46 VR 308.

[124]Ibid 311 [2].

In my view, it is clear that the status of an offender as a young offender is substantively taken into account throughout the system of criminal punishment and is not confined to the processes of the Children’s Court. Moreover, the DPP accepted during the hearing of the appeal, that, in the circumstances of this case, a judge of the County Court in exercising the sentencing discretion, could look to the factors identified in s 362 of the CYFA[125] and the prosecution could not be heard to oppose this.
[125]See [94] above.

With respect to a sentencing disposition involving confinement, s 32(1) of the Sentencing Act provides that 18 to 20 year olds convicted of offences can be detained in a youth justice centre instead of an adult prison if the court believes the young person has reasonable prospects for rehabilitation, or is particularly impressionable, immature or likely to be subjected to undesirable influences in an adult prison. This ‘dual track’ system, as it is known, reinforces the consideration given to youth in the overall system of criminal punishment.

It should be noted that Baker is only eligible for detention in a youth justice centre (if a sentence involving confinement is imposed) until he turns 21 (on 1 June 2017). [126]
[126]CYFA s 412(1)(b).

I concluded above that the right under s 17(2) is engaged in the circumstances of the case.[127] However, I consider that the delay in the filing of charges, in ignorance of Baker’s rights, and the continuation of the prosecution nonetheless, which resulted in the loss of opportunity for Baker to be sentenced in the Children’s Court, has not limited or interfered with the right in a manner that is unreasonable. The limit, or interference, is not of a nature or extent that results in a breach of the Charter. Baker’s youth, both at the time of the offending and at the time of sentence, will be a relevant consideration for the County Court to consider in arriving at its sentencing disposition. There are options for sentencing which are age-sensitive. The administrative management of the sentence imposed is governed by principles which seek to tailor programs to the individual circumstances, including the youth, of an offender. In my view, there is no incompatibility between the conduct of the DPP (in light of the earlier action, and inaction, by the police) and the right to the protection of Baker’s best interests as a child at the time of the offending. There being no incompatibility, there is no breach of the obligation owed under s 38 of the Charter.

(6) Conclusion on the Charter

[127]See [100] above.

In my view, there is no breach of the Charter.

In the light of that conclusion, reliance upon the Charter, in the individual circumstances of this case, does not provide a proper basis for the grant of a permanent stay.

Did the judge err in refusing a permanent stay at common law?

The Court has an inherent jurisdiction to permanently stay proceedings that are an abuse of process.[128] However, instances where a stay may be granted are not limited to traditional notions of abuse of process such as bad faith and oppression; the touchstone in every case is fairness.[129] Whether such a stay should be granted requires the Court to determine where on balance the interests of justice lie between the accused’s interests in obtaining a fair trial and the community’s interests in bringing the accused to trial on serious charges.[130] Where the continuation of the trial would amount to an abuse of process because there exists ‘a fundamental defect which goes to the root of the trial, of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences’,[131] it may be appropriate to grant a stay.
[128]Jago (1989) 168 CLR 23, 31, 33. See Reasons [23].
[129]Jago (1989) 168 CLR 23, 31, 33.
[130]Barton (1980) 147 CLR 75, 102; Jago (1989) 168 CLR 23, 33.
[131]Barton (1980) 147 CLR 75, 111. See also Jago (1989) 168 CLR 23, 34 (Mason CJ), 75 (Gaudron J), R v Glennon (1992) 173 CLR 592, 605–6 and Dupas v The Queen (2010) 241 CLR 237, 245 [18].

In Jago Mason CJ observed that a permanent stay should only be ordered in an extreme case and it would be rare for it to be ordered on the basis of delay alone; at common law there is no right to a speedy trial or trial within a reasonable time independent of the right to be protected from unfairness resulting from undue delay:

The test of fairness which must be applied involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community's right to expect that persons charged with criminal offences are brought to trial ... At the same time, it should not be overlooked that the community expects trials to be fair and to take place within a reasonable time after a person has been charged. The factors which need to be taken into account in deciding whether a permanent stay is needed in order to vindicate the accused's right to be protected against unfairness in the course of criminal proceedings cannot be precisely defined in a way which will cover every case. But they will generally include such matters as the length of the delay, the reasons for the delay, the accused’s responsibility for asserting his rights and, of course, the prejudice suffered by the accused ... In any event, a permanent stay should be ordered only in an extreme case and the making of such an order on the basis of delay alone will accordingly be very rare.[132]

[132]Jago (1989) 168 CLR 23, 33-4 (citations omitted).

Brennan J considered that a permanent stay ought not be granted, in the context of delay, unless the delay has caused an abuse of process:

However understandable the granting of a permanent stay for delay causing prejudice might be, the remedy cannot be supported unless it would truly be an abuse of process to try the case. In determining what does amount to an abuse of process, the considerations which favour the expansion of that notion so that it will support the remedy of permanent stay for delay causing prejudice to an accused must be set against countervailing considerations which have particular force in the criminal jurisdiction.
...
The community has an immediate interest in the administration of criminal justice to guarantee peace and order in society. The victims of crime, who are not ordinarily parties to prosecutions on indictment and whose interests have generally gone unacknowledged until recent times, must be able to see that justice is done if they are not to be driven to self-help to rectify their grievances. If a power to grant a permanent stay were to be exercised whenever a judge came to the conclusion that prejudice might or would be suffered by an accused because of delay in the prosecution, delay in law enforcement would defeat the enforcement of the law absolutely and prejudice resulting from delay would become a not unwelcome passport to immunity from prosecution. Refusal by a court to try a criminal case does not undo the anxiety and disability which the pendency of a criminal charge produces, but it leaves the accused with an irremovable cloud of suspicion over his head. And it is likely to engender a festering sense of injustice on the part of the community and the victim. The reasons for granting stay orders, which are as good as certificates of immunity, would be difficult of explanation for they would be largely discretionary. If permanent stay orders were to become commonplace, it would not be long before courts would forfeit public confidence. The granting of orders for permanent stays would inspire cynicism, if not suspicion, in the public mind.[133]

[133]Ibid 49–50 (emphasis added). See also 76 (Gaudron J).

As mentioned,[134] this Court more recently in Clark[135] reaffirmed that a permanent stay of a criminal prosecution will only be granted where the continuation of the prosecution would involve unacceptable injustice or unfairness.

[134]See [45] above.

[135][2016] VSCA 96 [18]-[19].

Baker submits that the judge erred in refusing to grant a stay because the delay has resulted in his exclusion from the Children’s Court jurisdiction which will give rise to an unfairness that cannot be remedied by the exercise of the sentencing discretion. He points again to the ‘radically different’ nature of the Children’s Court sentencing regime.

I have already rejected the proposition that there is a stark contrast between the Children’s Court regime and the regime of the County Court as applied to young offenders. I consider that the judge did not err in finding that Baker had not discharged the high onus of demonstrating that the court process will be unfair. As Mason CJ and Brennan J recognised in Jago, there is considerable public interest in ensuring that someone accused of committing criminal offences is dealt with by a court and not given, in effect, an immunity from prosecution. The charges are serious and there is considerable public interest in bringing to trial those accused of sexual offences, including offences committed through the use of the internet,[136] especially where the victim is herself a child.
[136]See DPP (Cth) v Boyles (a pseudonym) [2016] VSCA 267.

Conclusion

I would grant leave to appeal but dismiss the appeal. I would order that the proceeding in the County Court be expedited to ensure that, in the event that an order for confinement is made, Baker will remain eligible for detention in a youth justice centre.

BEACH JA:

I have had the considerable advantage of reading the reasons for judgment of Tate JA. I agree with her Honour that there should be a grant of leave to appeal under s 297 of the CPA and that the appeal should be dismissed.

Having dismissed Baker’s application for a permanent stay, the trial judge certified pursuant to s 295(3) of the CPA that his decision was of sufficient importance to the trial to justify it being determined on an interlocutory appeal. The judge was, with respect, correct to so certify, and leave to appeal should be granted because it is in the interests of justice to do so having regard to the potential for the appeal to resolve issues of law that are necessary for the proper conduct of the proceeding.[137] The grant of leave to appeal does not mean that the decision made by the judge is attended with any doubt. Quite the contrary. On the arguments put to his Honour, his Honour’s decision was plainly correct. Indeed, that proposition was barely disputed in the hearing before us.
[137]CPA s 297(1).

The principal issues in argument before us were whether there had been a breach of s 17(2) of the Charter and, if so, whether any such breach required Baker’s trial to be permanently stayed. Subject to what follows, I agree that Baker’s appeal should be dismissed for the reasons given by Tate JA.

Tate JA has concluded that the right under s 17(2) of the Charter is engaged in the circumstances of this case.[138] Her Honour, however, goes on to conclude that the loss of opportunity for Baker to be sentenced in the Children’s Court has not limited or interfered with the right under s 17(2) in a manner that is unreasonable. As a result, her Honour concluded that there was no breach of the obligation owed under s 38 of the Charter.[139] While I do not disagree with this analysis, in my view, the right under s 17(2) was not in fact even engaged in the circumstances of this case.
[138]Reasons of Tate JA [115].
[139]Ibid.

Section 17(2) of the Charter provides:

Every child has the right, without discrimination, to such protection as in his or her best interests and is needed by him or her by reason of being a child.

‘Child’ is defined in s 3(1) of the Charter to mean ‘a person under 18 years of age’.

In the CYFA, the word ‘child’ is defined in four paragraphs.[140] In the first paragraph of the definition, ‘child’ is defined to mean:

in the case of a person who is alleged to have committed an offence, a person who at the time of the alleged commission of the offence was under the age of 18 years but of or above the age of 10 years but does not include any person who is of or above the age of 19 years when a proceeding for the offence is commenced in [the Children’s Court of Victoria];[141]

[140]Paragraphs (a), (aa), (ab) and (b).

[141]Paragraph (a) of the definition of ‘child’.

Baker’s alleged offending occurred during the period 1 May to 31 May 2014. Baker turned 18 on 1 June 2014, the day after his alleged offending concluded. The matter was first reported to the police on 5 June 2014. From the very first point in time when police or prosecuting authorities first learned of the allegations against Baker, and at all times thereafter, Baker was 18 years of age or older, and not a child within the meaning of the Charter.

Whether the public authority referred to in s 38(1) of the Charter is Victoria Police[142] or an individual police officer or the Director of Public Prosecutions or any other person or entity involved in the laying of charges against, or prosecution of, Baker, in my view, none of these persons or entities can be found to have acted unlawfully in the way described in s 38(1) of the Charter. Section 38(1) provides that it is unlawful for a public authority ‘to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right’. At every stage of the process where any person or entity who could be described as a public authority in this case was involved, Baker was 18 years or older, and not a child. As a result, s 17(2), dealing with ‘every child’ having a particular right, had no application to Baker, and it could not have been unlawful or any person or entity to fail to consider or give effect to s 17(2).
[142]Cf s 4(1)(d) of the Charter.

For the reasons given by Tate JA, and this additional reason, I would dismiss the appeal. Finally, I also agree with Tate JA, for the reason given by her Honour that we should order that the proceeding in the County Court be expedited.

- - -

*Introduction and summary*..................................................................................................	1
*The indictable offences* ………………………………………………………………........	3
*The judge’s reasons* ...............................................................................................................	5
*The rights relied upon on appeal* ………...………………………………………….……	6
*Interlocutory appeals and Charter issues* ……………………………………………….	8
*Is Baker impermissibly seeking collateral review of prosecutorial discretion?* .........	10
*The Charter: has there been a breach of Baker’s human rights?* ………........................	13
(1) What is the contravening conduct and who is the ‘public authority’? ………	13
(2) The right to be tried without unreasonable delay .............................................	17
(3) The right to a fair trial ......................................................................................	28
(4) The right of a child to the protection of his or her best interests .......................	29
(5) Have Baker’s rights been interfered with —to what extent?.............................	33
(6) Conclusion on the Charter ...............................................................................	39
*Did the judge err in refusing a permanent stay at common law?* .................................	39
*Conclusion*.............................................................................................................................	42

[2017] VSCA 58

22 March 2017